UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 23-1899 _____________

UNITED STATES OF AMERICA

v.

NAHSIEM MCINTOSH, a/k/a Nahsiem McIntosh, Appellant _______________

On Appeal from the District Court For the District of Delaware (D.C. No. 1-20-cr-00040-001) District Judge: Honorable Colm F. Connolly _______________

Argued on July 30, 2024 Before: KRAUSE, RESTREPO, and MATEY, Circuit Judges.

(Filed: December 23, 2024) Janet M. Bateman Mary K. Healy [ARGUED] Office of the Federal Public Defender 800 King Street Suite 200 Wilmington, DE 19801 Counsel for Appellant Jesse S. Wenger [ARGUED] Office of the United States Attorney 1313 N Market Street Hercules Building, Suite 400 Wilmington, DE 19801 Counsel for Appellee

_______________

OPINION OF THE COURT _______________

KRAUSE, Circuit Judge.

We are called upon once again to examine the authority of the Sentencing Commission to interpret its own Guidelines in the wake of Kisor v. Wilkie, 588 U.S. 558 (2019)—this time in the context of two sentencing enhancements, the first concerning theft of a semiautomatic firearm capable of accepting a “large capacity magazine,” U.S.S.G. § 2K2.1(a)(4)(B), and the second concerning possession of a firearm “in connection with another felony offense,” id. § 2K2.1(b)(6)(B). After Appellant Nahsiem McIntosh pleaded guilty to federal firearm offenses stemming from his burglary

2 of a sporting goods store, the District Court applied both enhancements as interpreted in the Commission’s commentary to those Guidelines—commentary that McIntosh contends is not entitled to deference. He is mistaken. The relevant commentary reasonably interprets genuinely ambiguous Guidelines and is entitled to controlling weight because it implicates the Commission’s substantive expertise. We therefore will affirm. I. Factual and Procedural Background

On a spring night in 2020, McIntosh smashed the glass front door of the American Sportsman in Newark, Delaware, and entered with codefendant Derris Lloyd. After breaking several display cases, McIntosh and Lloyd grabbed a mix of handguns and larger firearms, including an AR-15-style weapon. The next day, law enforcement pulled over the car in which McIntosh was traveling. McIntosh exited the vehicle and began walking down an alley, stopping to throw a black grocery bag in a trashcan. One agent detained McIntosh while another agent searched the trashcan and confirmed that the bag contained a loaded semiautomatic pistol that was stolen from the sporting goods store the previous night. McIntosh was subsequently arrested.

A grand jury indicted McIntosh on three counts, and he pleaded guilty to two of them: (1) theft of firearms from a federal firearm licensee, in violation of 18 U.S.C. § 922(u); and (2) being a felon in possession of a firearm, in violation of 18

3 U.S.C. § 922(g)(1).1 Upon receiving his presentence report, McIntosh filed numerous objections, only two of which are relevant here. First, McIntosh argued that the report incorrectly included a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), which applies when a defendant “possessed any firearm . . . in connection with another felony offense.” Second, McIntosh challenged the application of a six-level enhancement under U.S.S.G. § 2K2.1(a)(4)(B) for possessing a “semiautomatic firearm that is capable of accepting a large capacity magazine.” After hearing argument and soliciting supplemental briefing, the District Court overruled McIntosh’s objections and imposed a bottom-of-the-Guidelines sentence of 100 months for each of th